Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 10288 -- James F. Holderman, Judge.
Bauer, Chief Judge, and Cudahy and Manion, Circuit Judges.
Plaintiff-appellant Jesse Richardson brought this action under 42 U.S.C. section 1983, claiming that he was deprived of his fourth amendment rights when he was arrested by the defendant-appellee, Sergeant Curtis Bonds. The district court granted defendant's motion for summary judgment, based on the qualified immunity afforded public officials. See Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Plaintiff brings this appeal. We affirm.
Richardson is a Chicago police officer. On the evening of October 3, 1985, he and a companion, fellow officer Leroy Newman, were seated in a tavern known as the T & J Lounge. Although Richardson and Newman were off duty, both were armed. Sergeant Bonds and two other officers were sent to the T & J Lounge during the late evening of October 3rd or the early morning of October 4th to investigate a citizen complaint that two police officers were in the bar consuming or trafficking in cocaine. Bonds and his men were dressed in street clothes. When Bonds arrived at the scene, he was met outside the bar by a woman who again advised him that two police officers were "doing" cocaine inside the T & J Lounge.
After entering and conducting a brief examination of the premises, Bonds approached Richardson's companion, Newman, whom Bonds knew to be a Chicago police officer. Bonds informed Newman of the reason for his visit to the tavern. During the conversation, Bonds turned to his two subordinates and asked them to fill out "contact cards" on the patrons of the bar. Completed "contact cards" provide the names and addresses of persons at the scene of a police investigation, and are used to locate witnesses after an incident under investigation. After his brief discussion with Newman, who was seated on Richardson's immediate right, Bonds asked Richardson for identification. Richardson refused, stating only that he was "a patron," and Bonds ordered his men to arrest Richardson. Richardson was transported to the 7th District police station, where he was released without charges at the behest of the watch commander.
The parties disagree as to significant aspects of this encounter. Bonds claims that Newman told him that Richardson was a police officer, that he (Bonds) identified himself before asking Richardson for identification and that plaintiff's gun was visible to Bonds prior to the arrest. Richardson counters that Bonds did not identify himself before the arrest, that Bonds did not know plaintiff was a police officer and that plaintiff's gun was not visible, but was instead concealed beneath his shirt. The parties also dispute whether Bonds arrested Richardson for failing to identify himself on request, as required by regulations of the Chicago Police Department, or for the unlawful possession of a firearm in a tavern.
This case was originally assigned to Judge George N. Leighton. On November 10, 1987, Judge Leighton denied defendant's motion for summary judgment based on the controverted factual issues discussed above. Judge Leighton subsequently vacated this decision in order to allow plaintiff to supplement the documents he had filed in opposition to the motion.
Following Judge Leighton's retirement, the case was reassigned to Judge Holderman. On February 29, 1988, Judge Holderman granted defendant's motion for summary judgment, based on the defense of qualified immunity. Judge Holderman considered the arrest under both tendered justifications: first, that Bonds had arrested Richardson for the latter's failure to identify himself, and second, that Richardson had been arrested for unlawful possession of a firearm. As to Richardson's failure to identify himself, Judge Holderman found that Bonds reasonably could have believed that Richardson was a police officer. Judge Holderman also concluded that "in 1985 it was not clear that an off-duty police officer could not be arrested for failing to identify himself during a legitimate investigation." Richardson v. Bonds, No. 86 C, mem. op. at 5 (N.D. Ill. Feb. 29, 1988), citing Brown v. Texas, 443 U.S. 47, 53, 61 L. Ed. 2d 357, 99 S. Ct. 2637 n.3 (1979).
Judge Holderman also decided that Bonds was justified in arresting Richardson on a weapons charge (presumably on the hypothesis that Richardson had not identified himself as a police officer). Bonds and his companion officers had stated, in affidavits supporting the motion for summary judgment, that Richardson's gun was visible at the time of the arrest. However, both Richardson and Newman, who was seated on Richardson's "gun side," had testified in deposition that Richardson's gun had been concealed beneath his shirt. Despite this apparent conflict in the testimony, Judge Holderman found that summary judgment was appropriate. He reasoned that:
Plaintiff's evidence does not sufficiently controvert defendant's evidence so as to preclude this court's resolution of the issue on summary judgment. First, plaintiff did not have personal knowledge of the visibility, to a third person, of his own gun. Mr. Newman had personal knowledge of that fact, but Mr. Newman's attention during the interaction with Sergeant Bonds was directed not at his friend -- who he stood beside -- but at Sergeant Bonds and the other officers. Finally, even assuming that plaintiff's shirt covered his gun, Sergeant Bonds could have "noticed" only the bulge under plaintiff's shirt and reasonably inferred that plaintiff had a gun there.*fn4
Mem. op. at 6. Since Judge Holderman found that the arrest was warranted under both tendered justifications,*fn1 he ruled that Bonds was entitled to qualified immunity as a matter of law, and entered ...